Miscellaneous

July 12, 2010

Taking the Warning Thing A Little Too Far

I readily and proudly admit to being a plaintiff’s lawyer. And, I confess, from time to time I have taken what some would argue as "aggressive" positions on the responsibility of certain defendants to warn others of the risk of harm.

However, the most aggressive plaintiff’s lawyer on the planet would not think the warning given in the restrooms in the convention center in Vancouver was necessary. This is the language of a sign posted above each urinal.

The Vancouver Convention Centre is committed to sustainability and uses recycled non-potable water from its Waste Treatment Facility to flush toilets and urinals. This water is not intended for consumption.

July 6, 2010

SVMIC Financial Results – 2009

by The Law Offices of John Day, P.C.

On June 15, 2010 I reported that SVMIC, the bedpan mutual that insures the vast majority of Tennessee doctors, reduced its rates by 23.1% . I also reported that the company declared a $20,000,000 dividend. The net effect of the dividend means that policyholders with a history of no paid claims will receive another 8% reduction (or so) in rates effective May 15, 2010.

How can SVMIC cut rates so dramatically while paying the highest dividend it has paid in years? There are two reasons. First, as a result of the tort reform passed effective October 1, 2008 (revised effective July 1, 2009) claims have decreased substantially. Fewer claims means reduced claims handling costs, defense fees, court reporter and other litigation fees, and claims payments. Since the law permits insurers to "write off" reserves as they are established, fewer claims means that reserves are lower than these would have otherwise been had there been more claims. A decrease in the need to set aside money in reserves for these "absent" claims increases net income.

And how it has increased. In 2009, SVMIC had a net income (after taxes) of a whopping $71, 968,000, an increase of over 100% from a year earlier.

June 22, 2010

New Book in the Mail

by The Law Offices of John Day, P.C.

I have good news for all of you who pre-ordered a copy of Day on Torts: Leading Cases in Tennessee Tort Law: the book arrived from the printer on Monday and the vast majority of the advance sale copies were shipped out the same day. The balance of the advance sale copies will be mailed on Tuesday the 22nd.

The new book contains over 650 pages, identifies more than 300 Tennessee tort law subjects, and provides summary of the leading case on each subject to give you a quick, readable synopsis of current state of the law. Many of the summaries include citations to other cases, giving you even more insight and helping narrow the scope of your research.The new book has over 30% more pages than the last edition, and addresses many new subjects. In addition, for the first time, the book has been printed in hardcover and will be supplemented by pocket part.

The price of the book is only $129, plus sales tax and a shipping and handling charge. You can order it here.

June 10, 2010

“Stop Me Before I Masturbate to Death”

by The Law Offices of John Day, P.C.

I file lawsuits for a living. Thus, I understand that reasonable minds often differ about whether there is liability in a given situation, often because there is a dispute about the facts. I also understand the idea of pushing the legal envelope – of attempting to expand the law to create a cause of action that will advance the overall cause of justice.

But a recent lawsuit threw me for a loop. David Carradine’s widow has apparently sued the French production company that was handling the actor’s last film, alleging that Mr. Carradine would still be alive if he had not been left in the hotel alone the night of his death.

Mr. Carradine was was found dead on June 4, 2009 in his Bangkok hotel room — a likely victim of auto-erotic asphyxia. Allegedly, there is a photo of Carradine (published by a Thai tabloid) which shows a body suspended from a bar in a closet, with his hands bound together above his head. Carradine’s genitals were also tied. It is reported that the family hired a doctor to do a private autopsy and determined that the cause of death was accidental asphyxiation.

May 21, 2010

Don’t Do That

by The Law Offices of John Day, P.C.

Are you a male lawyer who finds a woman in your office particularly attractive? Are you weird enough to even contemplate secreting a camera under her desk and filming … whatever?

Well, it allegedly crossed the mind of this Atlanta tax lawyer, and he is accused of actually putting his thoughts into action.

Free legal advice: don’t do that.

May 18, 2010

Tennessee Trial Judge Statistics

by The Law Offices of John Day, P.C.

The Tennessee Administrative Office of the Courts has released a database that allows the public to see what number of cases were closed in each judicial district and by each of the trial judges in the state. The database allows searches by judicial district or by judge.

When a judge’s name is pulled up the reader can see how many cases were closed in the last fiscal year. One can also see a list of the judge’s case that went up on appeal during the year, but only if an opinion has already been issued. Unfortunately, to determine the judge’s reversal rate, you have to open and read each of the opinions.

This information is interesting, but can be misinterpreted. First, the statistics tell us nothing about the complexity of the cases handled by the judge. A judge may end up with a number of medical malpractice cases, all of which involve more motion practice than the typical car wreck case and which can consume days of trial time.

May 16, 2010

Slight Delay on Shipping 3rd Edition of Day on Torts

by The Law Offices of John Day, P.C.

The horrible flooding in Nashville has delayed our printer’s ability to finish the 3rd edition of Day on Torts. It now looks like we will not be able to ship the book until May 28, 2010.

Day on Torts: Leading Cases in Tennessee Tort Law consists of a summary of the leading case on over 300 subjects in Tennessee tort law. The book also cites you to thousands of other cases to aid you in your research. As you can see from the Table of Contents, the book will give you readily access to current, definitive case law on topics of interest to every tort lawyer.

The book was written because I found that computerized legal research often makes it more difficult to find the leading case on a particular topic. Now, you can turn to the appropriate section of the book, find the leading case on the subject as of the date of publication, and the use computerized legal research to update the case law or expand your research as necessary.

May 4, 2010

Gulf Oil Spill: The Impact of Damage Caps Will Be Felt By Tens of Thousands

by The Law Offices of John Day, P.C.

You haven’t seen much about it in the press yet, but BP has the benefit of a cap that will probably limit its liability for the oil spill in the Gulf. Section 1004 of the Oil Pollution Act (OPA), passed into law in August 1990 after the Exxon Valdez incident, limits the liability of holders of leases or permits for offshore facilities to $75 million per spill, plus removal costs.

The Act also limits the liability for tank vessels larger than 3,000 gross tons to $1,200 per gross ton or $10 million, whichever is greater and the liability for responsible parties at onshore facilities and deepwater ports to $350 million per spill.

The Act also created the Oil Spill Liability Trust Fund. The primary source of revenue for the fund was a five-cents per barrel fee on imported and domestic oil. Collection of this fee ceased on December 31, 1994 due to a "sunset" provision in the law. Other revenue sources for the fund include interest on the fund, cost recovery from the parties responsible for the spills, and any fines or civil penalties collected. The Fund is administered by the U.S. Coast Guard’s National Pollution Funds Center (NPFC).

April 6, 2010

Corporate Fines and Justice

by The Law Offices of John Day, P.C.

The National Highway Traffic Safety Administration (NHTSA) is seeking the maximum civil penalty of $16.375 million against Toyota Motor Corporation for failing to notify the auto safety agency of the dangerous “sticky pedal” defect for at least four months, despite knowing of the potential risk to consumers. Approximately 2.3 million vehicles in the U.S. were recalled in late January for the sticky pedal defect. The penalty being sought against Toyota would be the largest civil penalty ever assessed against an auto manufacturer by NHTSA.

NHTSA learned through documents obtained from Toyota that the company knew of the sticky pedal defect since at least September 29, 2009. That day, Toyota issued repair procedures to their distributors in 31 European countries and Canada to address complaints of sticky accelerator pedals, sudden increases in engine RPM, and sudden vehicle acceleration. The documents also show that Toyota was aware that consumers in the United States were experiencing the same problems. Auto manufacturers are legally obligated to notify NHTSA within five business days if they determine that a safety defect exists. The reason NHTSA requires automobile manufacturers to notify the government of safety defects is to prevent the risk of harm to others. Prompt reporting, the theory goes, permits the government to order a recall if the manufacturer refuses to do so and give consumers a warning of the risk posed by the defect.

$16.375 million is a lot of money – but not to Toyota. Last year Toyota’s revenues exceeded $200 billion. It has assets of some $300 billion and its shareholder equity exceeds $100 billion. If it agrees to pay the fine of $16.375 million, or the fine is upheld by a court, the fine will amount to .000081875% of its revenue last year.

April 6, 2010

Death of Dan Pollitt

by The Law Offices of John Day, P.C.

Dan Pollitt, a law professor at the University of North Carolina School of Law, has died at the age of 88.

Professor Pollitt was my Constitutional Law professor and, as explained in this obituary, he spent "a lifetime of defending civil rights, civil liberties, and fighting injustices in local, state and national arenas." He was an unabashed progressive, a man who believed that the law should be an instrument of social change.

He worked on behalf of the poor and organized labor caused many to dislike him. I recall a job interview I had in the Fall of 1979 with a big firm. I was asked who my Con Law professor was and I replied "Dan Pollit." The interviewer said (and I am not kidding) "You can’t learn constitutional law from that communist." That was an easy job offer to turn down.